I agree with all that Judge LOUGHRAN has said concerning the errors committed during the progress of the trial, that such errors were prejudicial and cannot be overlooked. Reference might have been made to other errors. Among those was the charge substantially to the effect that the burden rested upon Weiss to establish his innocence on the basis of his alibi defense. (People v. Vaccaro, 288 N.Y. 170.) I also agree with *Page 243 Judge LOUGHRAN that the trial was unfair. In my opinion, the conduct of the trial throughout was so grossly unfair as to leave the defendants without even a remote outside chance of any free consideration by the jury of their defenses, so unfair in fact as to render utterly without force the presumption of innocence to which every person charged with a criminal offense is entitled until his guilt is established by legal evidence beyond a reasonable doubt. It does not follow that a new trial should be ordered. There was insufficient legal evidence at the close of the People's case upon which to base a conviction of Capone and the indictment against him should have been dismissed. In spite of the summary of the contentions of the People contained in one of the opinions for affirmance, an analysis of the whole record persuades me that the evidence was insufficient as matter of law to sustain the conviction of any of the defendants of murder in the first degree beyond a reasonable doubt.
The judgments of conviction should be reversed as to all of the defendants and the indictments dismissed.
FINCH and LEWIS, JJ., concur with CONWAY, J., LEHMAN, Ch. J., concurs in result in separate opinion; LOUGHRAN, J., dissents in opinion in which DESMOND, J., concurs; RIPPEY, J., dissents in separate opinion.
Judgments of conviction affirmed. (See 289 N.Y. 244.) *Page 244